Dissecting conviction of ex-coal secy

Recently, a CBI special co­urt convicted former coal secretary H C Gupta and two IAS officers for offences under the Prevention of Corrup­tion Act for their role in the allot­ment of coal blocks to a private company. They were adjudged guilty of flouting guidelines for coal block allotment, acting wa­ntonly on incomplete and incorrect applications of the private company, and abuse of office.

The court denounced the ‘casual’ manner in which the officers acted, the state of affairs in the Coal Ministry described which was as ‘ad hoc,’ and the tacit collusion among officers in recommending an ineligible party. Then prime minister Manmohan Singh, who was the coal minister at that time, was misled by the screening committee recommendations for agreeing to the coal block allotment to Kamal Sponge Ltd.

What were the acts of commission and omission of Gupta and the others? They were indicted for acting on the application of Kamal Sponge, which lacked vital, specified particulars namely audited financial accounts and misrepresented annual production. At the threshold, the applications were to be rejected outright.

The court dismissed the defence that it was physically impossible for the ministry to verify documents submitted with the applications; and that the guidelines mentioned ‘checking’ of documents to ensure completeness of application. In a nationally important issue as coal allocation, authenticity of informa-
tion furnished needed verification by senior officers. The officers wantonly overlooked gaps in the application to favour the party, keeping their discretion “wide open”, as part of “who cares” attitude of the ministry.

The court ruled that the gui­delines of the ministry for proc­essing applications had a mand­atory character. Gupta and the others were guilty of infringing the guidelines and had broken the ‘law’. The judgement drew heavily from the Supreme Court order in Manohar Lal Sharma (2014), which struck down the entire scheme of coal block allo­tment during the UPA regime. In the background that everyth­ing was not well in the coal ministry, especially discretion and misuse by senior IAS officers, the court dismissed Gupta’s defence as weak and ineffectual.

Even if the guidelines were flouted, do the actions of Gupta and others constitute culpability? In the Mussoorie academy, officers are taught differences between ‘statute’ and ‘administrative arrangements’. A statute, as an enactment of the legislature has to be adhered totally.

To constitute criminality, th­ere should be express violation of the statute. The law breaker will suffer punishment under the Indian Penal Code. Administrative arrangements, such as guidelines and office orders, are devised by the executive for shaping actions and outcomes. Through them, it has created a framework by which the process of official work is carried out.

Breach by an officer constitutes official misconduct, leading to disciplinary action by the competent authority. Punishment imposed on the delinquent officer ranges from censure to dismissal. Where was the crimination action of Gupta and others, when no law was infringed in the recommendations made? Is this a case of accountability construed as criminality?

Noteworthy is the extent traversed by the court to establish criminality in routine official proceedings. How proceedings were written; whether signatures attest to presence alone or unanimity; non-circulation of proceedings to ministries and the application not being within the meaning of the term ‘Dak’, are discussed elaborately to cast the web of criminality. Such administrative lapses at best indicate sloppy processing. They are nowhere near the standards of criminality or conspiracy to defraud public interest.

Why was indulgence shown towards the then prime minister? The court was surely aware of the huge establishment — the PMO — which processes files prior to the decision of the PM?

Many bureaucratic worthies, notably the principal secretary and other senior officers, function as ‘advisors’. How then can the prime minister be misled by the recommendations of a dep­artment or secretary, unless the course of action is consistent wi­th his (their) views. What about ministerial responsibility?

Malafide intention

Gupta and the other officers were convicted for offences und­er various provisions of the Prevention of Corruption (PC) Act. One Section — 13 1 d (iii) requires special mention. Extract: “13 — Criminal misconduct by a Public Servant; 1 (d) iii — While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.”

The court ruled that Mens rea (intention to commit a crime) was not required to be proved in this section. The officers’ guilt were established on the basis of their malafide intention, disregard for guidelines and abs­ence of public interest in allocation of coal blocks to Kamal Steel.

A reading of this section reveals staggering implications for those serving in the government. A public authority acting in the exercise of powers, runs the risk of conviction for favouring an individual.

Society must be unsparing towards corruption. Official misconduct and malfeasance are to be put down with an iron hand. However, when hapless officers are convicted on the basis of impossible standards, and bonafide official action is fastened with criminality, we must urge that justice be done to H C Gupta and his colleagues.

(The writer is former additional chief secretary, Government of Karnataka)